1. The standard of review on a challenge to the sufficiency of the evidence for establishing
an aggravating circumstance under K.S.A. 2000 Supp. 21-4635 is the same whether a
hard 40 or a hard 50 sentence is at issue. The standard is whether, after a review of all
the evidence, viewed in the light most favorable to the State, a rational factfinder could
have found by a preponderance of the evidence the existence of the aggravating
circumstances.

2. The district court's failure to list in writing the aggravating circumstances it found
supporting imposition of a hard 50 sentence, as required by K.S.A. 2000 Supp. 21-4635(c), may
be corrected by a nunc pro tunc order incorporating into the journal entry
the findings made on the record at the time of sentencing.

Cory D. Riddle, assistant appellate defender, argued the cause, and
Jessica R. Kunen, chief appellate
defender, was with him on the brief for appellant.

Terra D. Morehead, assistant district attorney, argued the cause, and
Nick A. Tomasic, district attorney,
and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

McFARLAND, C.J.: Edgar Livingston was charged with one count of first-degree
murder (K.S.A. 21-3401) and two counts of rape (K.S.A. 2000 Supp. 21-3502). Defendant
and the State entered into a plea agreement whereby: (1) defendant would plead guilty to
first-degree murder; (2) the two rape charges would be dismissed; (3) the State would not seek
the
death penalty; and (4) both sides reserved the right to comment as to the appropriate sentence
to be imposed. Prior to the sentencing, the State filed a motion requesting a hard 50 sentence.
The district court imposed a hard 50 sentence pursuant to K.S.A. 2000 Supp. 21-4635.
Defendant appeals therefrom, contending the record herein provides an insufficient legal basis
for its imposition.

FACTS

Relatively few factual details of the crime are included in the record. At the plea
hearing, Terra Morehead, assistant district attorney, recited the following facts in support of
the guilty plea:

"Judge, the evidence would be that on February 10th of 2000, Edgar Livingston came to
the
Wyandotte County Sheriff's Department and asked to speak to someone in the office.
Lieutenant Dennis Davis with the Sheriff's office made contact with Mr. Livingston. He
indicated that he had some information about a homicide. Lieutenant Davis began talking to
Mr. Livingston, and Mr. Livingston spontaneously told Lieutenant Davis that he had killed a
woman in his apartment at 2724 North 8th Street in Kansas City, Kansas, in Wyandotte County.
Police did respond to that address, and did enter the dwelling, and did locate the nude body of a
woman who was later identified as Audrey Lowery, and she was deceased. A full taped
statement was later taken from Livingston following his Miranda warning. He
waived the
Miranda warning and agreed to give a statement. He told police that he and Ms.
Lowery had
been engaged in narcotic activity, and they got involved in ­ in an argument, at which time
he
tied her up with a necktie, and he then had nonconsensual sex with her twice. Ms. Lowery
threatened to alert the police, knowing that he was on ­ already on parole for attempted
rape;
and Mr. Livingston then produced a claw hammer and struck her in the head numerous times.
Mr. Livingston was unaware of how many times he had actually struck her. An autopsy
revealed that at least nineteen blows to the head had occurred. And if this case proceeded to
trial, that's the evidence that the State would present for the charge of first degree murder."

Immediately thereafter the following exchange occurred between the Court and the
defendant:

"THE COURT: Okay, thank you. Mr. Livingston, I will ask you ­- you just
heard
what Ms. Morehead had to say about what she believes the evidence would be and what she
believes the State is prepared to prove. Do you generally agree that those are the facts of this
case?

"MR. LIVINGSTON: Yes sir. I ­ I ­ when this happened, I was on
drugs, and I
didn't know what I was doing; and I'm truly sorry about what happened, but I can't ­ can't
change it. I'm sorry that I did it, and I don't ­ I don't think I deserve that much time. I ain't
no bad person, and I don't think I'm a killer.

"THE COURT: Okay. You agree that those ­ those events, as Ms.
Morehead described them,
did, in fact, occur?

"MR. LIVINGSTON: Yes sir."

The court then accepted defendant's plea of guilty.

In its request for the imposition of the hard 50 sentence, the State listed the following
aggravating factors:

"1. The defendant was previously convicted of a felony in which the defendant
inflicted great bodily harm on another, to wit: on July 5, 1996, in Case Number 95CR1788, the
defendant was convicted of Attempted Rape for tying up and raping his thirteen year old
daughter, [M.L.].

"2. The defendant committed the crime [the murder] in order to avoid or prevent
a
lawful arrest or prosecution ­ after sexually assaulting the victim, Audrey Lowery, she
threatened to report the incident to the police.

"3. The defendant committed the crime in an especially heinous, atrocious or cruel
manner . . . . In consideration the State would note that the defendant inflicted mental anguish
or physical abuse before the victim's death by sexually assaulting her and there were continuous
acts of violence begun before or continuing after the killing in that the defendant administered at
least 19 blows, primarily to the skull of the victim, with a claw hammer."

At the sentencing hearing, the State called the victim in the attempted rape case as a
witness. She stated that as she was coming out of the bathroom, defendant grabbed her, tied
her hands behind her back, laid her down, and took off some of her clothes. She further stated
defendant tried to rape her but stopped when the victim told him the rope was hurting her.
Defendant then untied her and advised her to wash the rope marks off and not to tell her
mother.

In support of its second factor, the State pointed to defendant's confession. According
to the State, defendant said that one reason he killed the victim was that after he had forced her
to have sexual intercourse with him, she threatened to call the police. As he was on parole,
defendant knew he would be returned to prison. Defendant then took the claw hammer and
killed the victim. It should be noted that the defendant's taped confession is not included in
the record on appeal, nor was it offered or admitted at sentencing; however, the affidavit for
application for warrant indicates that defendant stated the following during his taped
confession: "Livingston advised that he engaged in a verbal argument with Lowery. He later
tied her up with a necktie, and had non-consensual sex with her twice. Lowery threatened to
alert police, and Livingston produced a claw hammer. He then struck her in the head
numerous times."

As to the third factor, the State argued that striking the victim 19 times in the head with
a claw hammer is an especially heinous, atrocious, or cruel manner of killing. The autopsy
report was introduced and corroborated the massive multiple trauma to the head and various
other injuries.

In mitigation, defense counsel argued that the victim was a prostitute and defendant had
paid her for her favors. He further argued defendant killed the victim to prevent her from
advising the police he had taken and used some of the victim's crack cocaine as opposed to the
State's argument that the killing resulted from defendant's concern that the victim would report
the rapes to the police. Defense counsel also claimed mitigation in defendant's having turned
himself in to the sheriff's office the same day as the killing and that defendant "was not in his
right mind due to the use of crack cocaine at the time." There is no evidence in the record
supporting any of these claims other than those in the preceding sentence.

The court then stated:

"THE COURT: Thank you. Accordingly, the defendant is sentenced to the
custody of
the Secretary of Corrections for a term of life. I'm going to find that the Hard-50 sentence
applies. The aggravating circumstances offered by the State, including a prior crime of
violence, and a particularly cruel and heinous manner in which this crime was committed, even
if this killing wasn't done to cover up a rape, it was still particularly cruel and heinous.

"I find there are no mitigating circumstances which would outweigh these and
therefore
the Hard-50 is applicable."

Defendant contends the evidence was insufficient for the court to find that the
aggravating factors outweighed the mitigating factors.

K.S.A. 2000 Supp. 21-4636 enumerates aggravating circumstances to be considered
when imposing the hard 40 or hard 50 sentence. This statute was also amended in 1999 and
provides in pertinent part:

"Aggravating circumstances shall be limited to the following:

"(a) The defendant was previously convicted of a felony in which the defendant
inflicted great bodily harm, disfigurement, dismemberment or death on another.

. . . .

"(e) The defendant committed the crime in order to avoid or prevent a lawful
arrest or
prosecution.

"(f) The defendant committed the crime in an especially heinous, atrocious or cruel
manner. A finding that the victim was aware of such victim's fate or had conscious pain and
suffering as a result of the physical trauma that resulted in the victim's death is not necessary to
find that the manner in which the defendant killed the victim was especially heinous, atrocious
or cruel. In making a determination that the crime was committed in an especially heinous,
atrocious or cruel manner, any of the following conduct by the defendant may be considered
sufficient:

. . . .

(3) infliction of mental anguish or physical abuse before the victim's death;

(4) torture of the victim;

(5) continuous acts of violence begun before or continuing after the killing;

. . . .

(7) any other conduct in the opinion of the court that is especially heinous,
atrocious or
cruel."

K.S.A. 21-4637 addresses mitigating circumstances and provides:

"Mitigating circumstances shall include, but are not limited to, the following:

"(a) The defendant has no significant history of prior criminal activity.

"(b) The crime was committed while the defendant was under the influence of
extreme
mental or emotional disturbances.

"(c) The victim was a participant in or consented to the defendant's conduct.

"(d) The defendant was an accomplice in the crime committed by another person,
and
the defendant's participation was relatively minor.

"(e) The defendant acted under extreme distress or under the substantial
domination of
another person.

"(f) The capacity of the defendant to appreciate the criminality of the defendant's
conduct or to conform the defendant's conduct to the requirements of law was substantially
impaired.

"(g) The age of the defendant at the time of the crime.

"(h) At the time of the crime, the defendant was suffering from posttraumatic
stress
syndrome caused by violence or abuse by the victim."

STANDARD OF REVIEW

The parties cite an incorrect standard of review, relying on case law that was decided
prior to our decision in State v. Spain, 263 Kan. 708, 714, 953 P.2d 1004 (1998).

In Spain, this court thoroughly discussed the standard of appellate review for
a hard 40
sentence and concluded that the implicit standard of proof for aggravating circumstances under
21-4635(c) is a preponderance of the evidence. More recently, this court has reaffirmed the
holding in Spain and held that where the sufficiency of the evidence is challenged for
establishing the existence of an aggravating circumstance in a hard 40 sentencing proceeding,
the standard of review is whether, after a review of all the evidence, viewed in the light most
favorable to the prosecution, a rational factfinder could have found the existence of the
aggravating circumstance by a preponderance of the evidence. State v. Murillo, 269
Kan. 281,
287-88, 7 P.3d 264 (2000). Although K.S.A. 21-4635(c) was amended in 1999 to add the
imposition of the hard 50 sentence for certain crimes committed after July 1, 1999, the
amendment did not add any language which would have changed this standard of review.
Therefore, the standard of review for a hard 50 sentence would be that which we have set out
for a hard 40 sentence.

Where the trial court's refusal to find a mitigating circumstance under K.S.A. 21-4637
is challenged by the defendant, the standard of review is whether, after a review of all the
evidence, viewed in a light most favorable to the defendant, a rational factfinder could have
found by a preponderance of the evidence the existence of the mitigating circumstance.
However, the trial court's decision regarding whether a circumstance not enumerated as
mitigating in the statute was truly a mitigating circumstance is within the trial court's sound
discretion and will not be disturbed on appeal absent abuse of discretion. Spain, 263
Kan. at
720.

In State v. Bedford, 269 Kan. 315, 332, 7 P.3d 224 (2000) (citing State
v. Spain, 269
Kan. 54, Syl. ¶ 1, 4 P.3d 621 [2000]), we held that the trial court's weighing of the
aggravating and mitigating circumstances is within its sound discretion and will not be
disturbed on appeal absent an abuse of discretion.

DISCUSSION

For its first aggravating factor the State contends the prior attempted rape conviction is
sufficient to establish a prior crime wherein defendant was convicted of inflicting great bodily
harm on another person. See K.S.A. 2000 Supp. 21-4636(a). Defendant argues no great
bodily harm was shown by the evidence herein.

In State v. Gideon, 257 Kan. 591, 894 P.2d 850 (1995), the defendant argued
there
was insufficient evidence to support the trial court's finding of the aggravating circumstance
that he was previously convicted of a crime in which he inflicted great bodily harm on another.
In finding this aggravating circumstance, the court relied on the defendant's 1983 conviction
for rape and aggravated sodomy. Specifically, Gideon argued that the crime of rape was
insufficient to constitute great bodily harm and that there was no evidence that he inflicted
great bodily harm above and beyond the crime of rape in the 1983 conviction.

We concluded that either conviction was sufficient to support this aggravating factor,
reasoning:

'Bodily harm has been defined as "any touching of the victim against [the
victim's] will, with physical force, in an intentional hostile and aggravated
manner." [Citation omitted.] The word "great" distinguishes the bodily harm
necessary in [the offense of aggravated battery] from slight, trivial, minor or
moderate harm, and as such it does not include mere bruises, which are likely
to be sustained in simple battery.'

This court has held that rape constitutes sufficient bodily harm to support a
conviction of aggravated kidnapping, see State v. Zamora, 247 Kan. 684, 695,
803 P.2d 568 (1990), but this court has not expressed an opinion whether rape
constitutes great bodily harm.

"We hold that the conviction of the crime of rape or aggravated criminal sodomy is
sufficient to find that the defendant inflicted great bodily harm. We decline to hold there are
different degrees of rape and aggravated criminal sodomy, as defendant suggests, so as to
require a finding that a prior rape or aggravated sodomy was worse than 'ordinary' or inherent
in the elements of the crime before the crime constitutes great bodily harm. Rape and
aggravated criminal sodomy are extremely invasive offenses constituting great bodily harm."
257 Kan. at 614.

Here, defendant's prior conviction was the attempted rape of his 13-year-old daughter.
Other than rope marks on her arms that the victim was able to wash off, it does not appear that
defendant physically injured her. This situation is quite different from that in Gideon,
where
the court noted the extremely invasive nature of the offense of rape. Here, father attacked
daughter in the bathroom of their home, he pushed her to the floor and tied her wrists, he
began to remove her clothing and his own. Although this prior offense was certainly gross and
repugnant, it cannot be said to have caused great bodily harm as that term was applied in
Gideon. There was no physical invasion of the body.

Defendant is also correct in noting that the sentencing court did not find defendant had
a prior felony that caused great bodily harm; rather, the judge found that this was a prior
crime of violence. The statute requires more than a crime of violence to support this
aggravating factor. We must conclude there is insufficient evidence to support this
aggravating factor.

The second aggravating factor claimed by the State is that defendant killed the victim to
avoid or prevent a lawful arrest or prosecution. As previously noted, defendant advised the
arresting officers that he killed the bound victim to prevent her from alerting the police. The
State's theory was that the victim would have reported the two rapes. Defense counsel argued
that defendant took some cocaine from the victim during the incident and that it was this crime
the victim threatened to report. There is no evidence or testimony that defendant took cocaine
from the victim. Perhaps this dispute in theories is why the district court commented in its
findings relative to aggravating circumstances: "[E]ven if this killing wasn't done to cover up
a
rape, it was still particularly cruel and heinous." The court made no finding the killing was
done to prevent or avoid a lawful arrest or prosecution, and, accordingly, this statutory factor
is not a basis for the imposition of the hard 50 sentence herein.

This brings us to the discussion of the district court's finding that the murder was
committed in a "particularly cruel and heinous manner."

Defendant argues that the coroner made no determination as to which blow to the head
killed the victim or whether she was conscious when the blows began. He also asserts that the
fact that the victim may not have been conscious of her fate or conscious of her pain or
suffering should be considered. Defendant acknowledges in his brief that in State v.
Moncla,
262 Kan. 58, 936 P.2d 727 (1997), this court affirmed the sentencing court's determination
that 18 blows to the victim's head with a claw hammer was an especially heinous, atrocious,
and cruel manner of killing the victim. Defendant seeks to distinguish Moncla on the
basis
that, unlike Moncla, no defensive injuries were seen on the victim's body. We note
that the
evidence in the case herein was that the victim's hands were bound. We find no merit in this
attempt to distinguish Moncla. As to defendant's argument there was a lack of
evidence
regarding the victim's state of consciousness when the blows began, such evidence is
unnecessary to a finding that the crime was committed in an especially heinous, atrocious, or
cruel manner under the current and applicable form of K.S.A. 2000 Supp. 21-4636(f).

As previously stated, where the sufficiency of the evidence is challenged for
establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding,
the standard of review is whether, after a review of all the evidence, viewed in the light most
favorable to the prosecution, a rational factfinder could have found the existence of the
aggravating circumstance by a preponderance of the evidence. That standard has been met
here in regards to K.S.A. 2000 Supp. 21-4636(f)(3), "infliction of mental anguish or physical
abuse before the victim's death" ­- defendant confessed to binding the victim and raping her
before beating her to death, and (f)(5), "continuous acts of violence begun before or
continuing after the killing" ­- defendant confessed to raping the victim twice before
striking
her 19 times in the head with a claw hammer.

The record amply supports the sentencing court's determination that the killing was
done in an especially heinous, atrocious, or cruel manner.

Defendant argues that the sentencing court erred in finding the aggravating factors
outweighed the mitigating factors. As for mitigating factors, defendant's argument in his brief
is stated as follows:

"Livingston had the psychotic disorder, NOS [psychotic disorder not otherwise specified],
at the
time of the incident. He was also 'not of a right mind' at the time of the incident because of
crack cocaine. And finally, he turned himself in and confessed the morning after the incident.

"At sentencing, Livingston made the following statement:

'I know what I did was wrong and stuff and I'm sorry about what
happened. I was smoking crack cocaine that night and I got hooked on
something and I couldn't handle. I'm not no killer but I don't know, I got
hooked to crack and I couldn't handle it. Something like that had happened to
me before. And I'm sorry and I pray for her every night and I pray for
myself. I'm sorry for what happened.'

"Livingston was a crack addict with a serious psychotic disorder. His disorder was
controllable with medication. The only aggravating factor for sentencing him to the Hard 50
was the fact that he, in one continuous act, killed Ms. Lowery with a hammer. He started
swinging a hammer and couldn't stop. His remorse was evidenced by the fact that he turned
himself in the next morning. He didn't run. He didn't hide. He recognized that his drug
induced, possibly psychotic, episode resulted in the tragic death of Ms. Lowery. He lost control
of himself, but was willing to accept responsibility for his acts."

The evidence of psychotic disorder came from the report sent to the district court
relative to the evaluation requested by the defense as to defendant's competency prior to trial.
The report concluded defendant was competent to stand trial. There is nothing in the report
indicating defendant was psychotic at the time of the slaying.

Livingston delivered 19 blows to the victim's head with a claw hammer while her
hands were tied and after having, by his own admission, two acts of nonconsensual sex with
her. Balanced against these stark facts are assertions regarding Livingston's alleged psychotic
disorder and his feelings of remorse. The overwhelming disparity between 19 blows with a
claw hammer and the weak mitigating factors presented by Livingston renders remand to the
sentencing court unnecessary. Under such circumstances we can conclude with certainty that
the aggravating factor herein was not outweighed by the claimed mitigating factors. The
sentence imposed was proper.

One final matter remains. As noted by defendant:

"[T]he sentencing court did not follow K.S.A. 21-4635(c) and designate, in writing, the
statutory aggravating circumstances which it found. The lack of a written statement in the
journal entry should be corrected by a nunc pro tunc order, incorporating into the journal entry
the findings made on the record by the court at the time sentence was pronounced. State v.
Moncla, 262 Kan. at 79."

This was the procedure employed in Moncla to correct the omission and
should be
utilized herein in order that the one aggravating factor affirmed herein may be incorporated
into the journal entry.

The judgment is affirmed, and the case is remanded for entry of a nunc pro tunc order.